Criminal Defendants Should Have Chance to Review FISA Materials, EFF and ACLU Argue in Amicus Brief

In the 36-year existence of the Foreign Intelligence Surveillance Act (FISA), the government has never disclosed classified FISA materials—the specific applications for surveillance and the factual affidavits that support the surveillance request—to a criminal defendant. That all changed in January 2014 when a federal judge in Chicago ordered the government to turn over surveillance applications and affidavits to the attorneys representing Adel Daoud, a 19 year-old accused of attempting to blow up a bar in Chicago. As the government appeals that decision to the Seventh Circuit Court of Appeals, we've signed onto an amicus brief written by the ACLU and the ACLU of Illinois filed today that explains why Judge Sharon Coleman was right to order disclosure.

Legal Background

In most criminal cases, defendants receive discovery from the government, including police reports and search warrant applications and affidavits, which they can use to argue to a judge that the government improperly obtained evidence. If the judge is convinced the government did something wrong, it can "suppress" the evidence and preclude the government from using it in the defendant's trial.

FISA follows a similar procedure with respect to government disclosure of the FISA applications, affidavits, and orders submitted to or issued by the Foreign Intelligence Surveillance Court ("FISC"). But because FISA materials deal with national security concerns, defendants typically do not get the materials directly. Instead, when a defendant challenges the FISA evidence used against him, the federal district court hearing the criminal case reviews the materials on its own (known as an in camera review) and can order the government to turn materials over to the defense if it finds disclosure is "necessary" to accurately decide whether the government's FISA surveillance was legal.

There has never been a disclosure of FISA materials to a defendant. Instead, courts have generally accepted the government's view that disclosure would harm national security or found that the defendant did not need the materials to make a legal challenge to the surveillance.

United States v. Daoud

In 2011, Daoud—an American teenager living in Hillside, Illinois—came to the attention of authorities after he was allegedly found to be reading al-Qaeda propaganda and distributing online material about violent jihad. Undercover FBI agents pretending to be terrorists then spent months communicating with Daoud online about killing Americans, culminating in a September 2012 fake plot to allegedly detonate a bomb (which was not real) outside of a Chicago bar. After Daoud was charged in federal court, the government notified Daoud's lawyers that it had used evidence obtained under FISA. Months later, while the Senate was debating whether to reauthorize the infamous FISA Amendments Act (FAA) in December 2012, Sen. Dianne Feinstein used Daoud's case specifically to highlight how surveillance conducted under the FAA had lead to "good intelligence" that prevented terrorist attacks. She never explained the details of how the FAA was used in Daoud's case.

As the Snowden revelations revealed more information about how FAA surveillance worked, Daoud's lawyers asked the government if Feinstein's comments were true and if the government had used the FAA, specifically section 702 of the FAA, to obtain evidence against Daoud. The government claimed it had not used the FAA, although it seemed plausible that Daoud's communications had initially been gathered under one of the NSA's section 702 collection programs. Daoud ultimately brought a challenge to the use of FISA evidence against him without the benefit of seeing the FISA materials submitted to the FISC.

Consistent with its 36-year practice, the government argued that national security concerns prevented the government from sharing the FISA materials with the defense. So Judge Coleman reviewed the FISA materials on her own in camera. In a surprise ruling, she ordered the government to disclose the FISA materials to the defense, finding that the best way to determine the legality of the FISA surveillance was through an adversarial process that allowed Daoud's lawyers—all of whom had top secret security clearance—to see the materials and raise legal challenges based on what was contained therein.

The government appealed this ruling to the Seventh Circuit and that's where our amicus brief with the ACLU was filed, supporting Judge Coleman's decision to order the materials disclosed.

FISA clearly contemplated that these materials could be disclosed to the defense in some cases. If Congress wanted to prohibit disclosure of FISA materials altogether, it could have done so explicitly in FISA rather than create the statute as it exists now, which allows a judge to make an individual determination about whether disclosure is necessary. The government can't now complain that this system undermines national security when a judge actually takes up the procedure created by Congress and decides to order the government disclose the materials. Plus, given the fact that one of the most important revelations to come out of the recent NSA scandal is the government's repeated miscommunications about both its surveillance practices and its interpretation of the terms in FISA, a federal judge could reasonably worry that that the government's submissions are based on a self-serving understanding of FISA.

There's proof that's already happened with the FAA specifically. In Clapper v. Amnesty International, the U.S. Supreme Court threw out a lawsuit brought by the ACLU challenging the constitutionality of the FAA, finding that a group of lawyers, scholars and journalists didn't have standing to challenge the FAA. At oral argument, the U.S. Solicitor General Donald Verilli assured the high court that the FAA would not go unchallenged and that a defendant would get notice from the government if it intended to use evidence collected under the FAA against them. The court accepted that representation, specifically referencing it in its opinion. But in reality, the government had not been notifying defendants that FAA evidence had been used in their cases and it was only until Verilli put internal pressure on the Department of Justice that the government belatedly begannotifying defendants.

With that background, Judge Coleman could be rightly skeptical of the government's ability to grasp its own national security practices especially in light of Daoud's case specifically. Given the uncertainty about whether the FAA evidence was used in Daoud's case or not, with conflicting statements by two separate branches of the government, the Court could rightly determine that a careful review of the surveillance applications and affidavits was necessary to determine the legality of all of the government's FISA surveillance here.

We hope the Seventh Circuit agrees with Judge Coleman and find disclosure was appropriate. In addition to giving Daoud a chance to determine what type of surveillance was used against him, disclosure serves the public interest by showing that it is possible to balance national security and civil liberties.

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